Ceased to be in force on 24 May 2002, in accordance with article 2
of the Protocol of 2000 to the International Fund for Compensation for Oil
Pollution Damage, 1971, when the number of Contracting States to the Convention
fell to 24.
INTERNATIONAL CONVENTION
ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL
POLLUTION DAMAGE
(Brussels,
18.XII.1971)
(Supplementary
to the International Convention on Civil Liability for Oil Pollution Damage,
1969)
The
States Parties to the present Convention,
Being
Parties to the International Convention on Civil Liability for Oil Pollution
Damage, adopted at Brussels on 29 November 1969,
Conscious
of the dangers of pollution posed by the world-wide maritime carriage of oil in
bulk,
Convinced
of the need to ensure that adequate compensation is available to persons who
suffer damage caused by pollution resulting from the escape or discharge of oil
from ships,
Considering
that the International Convention of 29 November 1969, on Civil Liability for
Oil Pollution Damage, by providing a regime for compensation for pollution
damage in Contracting States and for the costs of measures, wherever taken, to
prevent or minimize such damage, represents a considerable progress towards the
achievement of this aim,
Considering
however that this regime does not afford full compensation for victims of oil
pollution damage in all cases while it imposes an additional financial burden
on shipowners,
Considering
further that the economic consequences of oil pollution damage resulting from
the escape or discharge of oil carried in bulk at sea by ships should not
exclusively be borne by the shipping industry but should in part be borne by
the oil cargo interests,
Convinced
of the need to elaborate a compensation and indemnification system
supplementary to the International Convention on Civil Liability for Oil
Pollution Damage with a view to ensuring that full compensation will be
available to victims of oil pollution incidents and that the shipowners are at
the same time given relief in respect of the additional financial burdens
imposed on them by the said Convention,
Taking
note of the Resolution on the Establishment of an International Compensation
Fund for Oil Pollution Damage which was adopted on 29 November 1969 by the
International Legal Conference on Marine Pollution Damage,
Have
agreed as follows:
For
the purposes of this Convention:
1.
"Liability Convention" means the International Convention on Civil
Liability for Oil Pollution Damage, adopted at Brussels on 29 November 1969.
2.
"Ship", "Person", "Owner", "Oil",
"Pollution Damage", "Preventive Measures",
"Incident" and "Organization", have the same meaning as in
Article I of the Liability Convention, provided however that, for the purposes
of these terms, "oil" shall be confined to persistent hydrocarbon
mineral oils.
3.
"Contributing Oil" means crude oil and fuel oil as defined in
sub-paragraphs (a) and (b) below:
(a) "Crude Oil"
means any liquid hydrocarbon mixture occurring naturally in the earth whether
or not treated to render it suitable for transportation. It also includes crude
oils from which certain distillate fractions have been removed (sometimes
referred to as "topped crudes") or to which certain distillate
fractions have been added (sometimes referred to as "spiked" or
"reconstituted" crudes).
(b) "Fuel Oil"
means heavy distillates or residues from crude oil or blends of such materials
intended for use as a fuel for the production of heat or power of a quality equivalent
to the "American Society for Testing and Materials' Specification for
Number Four Fuel Oil (Designation D 396-69)", or heavier.
4.
"Franc" means the unit referred to in Article V, paragraph 9 of the
Liability Convention.
5.
"Ship's tonnage" has the same meaning as in Article V, paragraph 10,
of the Liability Convention.
6.
"Ton", in relation to oil, means a metric ton.
7.
"Guarantor" means any person providing insurance or other financial
security to cover an owner's liability in pursuant of Article VII, paragraph 1,
of the Liability Convention.
8.
"Terminal Installation" means any site for the storage of oil in bulk
which is capable of receiving oil from waterborne transportation, including any
facility situated off-shore and linked to such site.
9.
Where an incident consists of a series of occurrences, it shall be treated as
having occurred on the date of the first such occurrence.
1.
An International Fund for compensation for pollution damage, to be named
"The International Oil Pollution Compensation Fund" and hereinafter
referred to as "The Fund", is hereby established with the following
aims:
(a) to provide compensation
for pollution damage to the extent that the protection afforded by the
Liability Convention is inadequate;
(b) to give relief to
shipowners in respect of the additional financial burden imposed on them by the
Liability Convention, such relief being subject to conditions designed to
ensure compliance with safety at sea and other conventions;
(c) to give effect to the
related purposes set out in this Convention.
2.
The Fund shall in each Contracting State be recognized as a legal person
capable under the laws of that State of assuming rights and obligations and of
being a party in legal proceedings before the courts of that State. Each
Contracting State shall recognize the Director of the Fund (hereinafter
referred to as "The Director") as the legal representative of the
Fund.
This
Convention shall apply:
1.
With regard to compensation according to Article 4, exclusively to pollution
damage caused on the territory including the territorial sea of a Contracting
State, and to preventive measures taken to prevent or minimize such damage;
2.
With regard to indemnification of shipowners and their guarantors according to
Article 5, exclusively in respect of pollution damage caused on the territory,
including the territorial sea, of a State Party to the Liability Convention by
a ship registered in or flying the flag of a Contracting State and in respect
of preventive measures taken to prevent or minimize such damage.
Compensation and indemnification
1.
For the purpose of fulfilling its function under Article 2, paragraph 1 (a),
the Fund shall pay compensation to any person suffering pollution damage if
such person has been unable to obtain full and adequate compensation for the
damage under the terms of the Liability Convention,
(a) because no liability for
the damage arises under the Liability Convention;
(b) because the owner liable
for the damage under the Liability Convention is financially incapable of
meeting his obligations in full and any financial security that may be provided
under Article VII of that Convention does not cover or is insufficient to
satisfy the claims for compensation for the damage; an owner being treated as
financially incapable of meeting his obligations and a financial security being
treated as insufficient if the person suffering the damage has been unable to
obtain full satisfaction of the amount of compensation due under the Liability
Convention after having taken all reasonable steps to pursue the legal remedies
available to him;
(c) because the damage
exceeds the owner's liability under the Liability Convention as limited
pursuant to Article V, paragraph 1, of that Convention or under the terms of
any other international Convention in force or open for signature, ratification
or accession at the date of this Convention.
Expenses
reasonably incurred or sacrifices reasonably made by the owner voluntarily to
prevent or minimize pollution damage shall be treated as pollution damage for
the purposes of this Article.
2.
The Fund shall incur no obligation under the preceding paragraph if:
(a) it proves that the
pollution damage resulted from an act of war, hostilities, civil war or
insurrection or was caused by oil which has escaped or been discharged from a
warship or other ship owned or operated by a State and used, at the time of the
incident, only on Government non-commercial service; or
(b) the claimant cannot
prove that the damage resulted from an incident involving one or more ships.
3.
If the Fund proves that the pollution damage resulted wholly or partially
either from an act or omission done with intent to cause damage by the person
who suffered the damage or from the negligence of that person, the Fund may be
exonerated wholly or partially from its obligation to pay compensation to such
person provided, however, that there shall be no such exoneration with regard
to such preventive measures which are compensated under paragraph 1. The Fund
shall in any event be exonerated to the extent that the shipowner may have been
exonerated under Article III, paragraph 3, of the Liability Convention.
4.
(a) Except as otherwise
provided in subparagraph (b) of this paragraph, the aggregate amount of
compensation payable by the Fund under this Article shall in respect of any one
incident be limited, so that the total sum of that amount and the amount of
compensation actually paid under the Liability Convention for pollution damage
caused in the territory of the Contracting States, including any sums in
respect of which the Fund is under an obligation to indemnify the owner
pursuant to Article 5, paragraph 1, of this Convention, shall not exceed 450
million francs.
(b) The aggregate amount of
compensation payable by the Fund under this Article for pollution damage
resulting from a natural phenomenon of an exceptional, inevitable and
irresistible character shall not exceed 450 million francs.
5.
Where the amount of established claims against the Fund exceeds the aggregate
amount of compensation payable under paragraph 4, the amount available shall be
distributed in such a manner that the proportion between any established claim
and the amount of compensation actually recovered by the claimant under the
Liability Convention and this Convention shall be the same for all claimants.
6.
The Assembly of the Fund (hereinafter referred to as "the Assembly")
may, having regard to the experience of incidents which have occurred and in
particular the amount of damage resulting therefrom and to changes in the
monetary values, decide that the amount of 450 million francs referred to in
paragraph 4, sub-paragraphs (a) and (b), shall be changed; provided, however,
that this amount shall in no case exceed 900 million francs or be lower than
450 million francs. The changed amount shall apply to incidents which occur
after the date of the decision effecting the change.
7.
The Fund shall, at the request of a Contracting State, use its good offices as
necessary to assist that State to secure promptly such personnel, material and
services as are necessary to enable the State to take measures to prevent or
mitigate pollution damage arising from an incident in respect of which the Fund
may be called upon to pay compensation under this Convention.
8.
The Fund may on conditions to be laid down in the Internal Regulations provide
credit facilities with a view to the taking of preventive measures against
pollution damage arising from a particular incident in respect of which the
Fund may be called upon to pay compensation under this Convention.
1.
For the purpose of fulfilling its function under Article 2, paragraph 1(b), the
Fund shall indemnify the owner and his guarantor for that portion of the
aggregate amount of liability under the Liability Convention which:
(a) is in excess of an
amount equivalent to 1,500 francs for each ton of the ship's tonnage or of an
amount of 125 million francs, whichever is the less, and
(b) is not in excess of an amount
equivalent to 2,000 francs for each ton of the said tonnage or an amount of 210
million francs, whichever is the less, provided, however, that the Fund shall
incur no obligation under this paragraph where the pollution damage resulted
from the wilful misconduct of the owner himself.
2.
The Assembly may decide that the Fund shall, on conditions to be laid down in
the Internal Regulations, assume the obligations of a guarantor in respect of
ships referred to in Article 3, paragraph 2, with regard to the portion of
liability referred to in paragraph 1 of this Article. However, the Fund shall
assume such obligations only if the owner so requests and if he maintains
adequate insurance or other financial security covering the owner's liability
under the Liability Convention up to an amount equivalent to 1,500 francs for
each ton of the ship's tonnage or an amount of 125 million francs, whichever is
the less. If the Fund assumes such obligations, the owner shall in each
Contracting State be considered to have complied with Article VII of the
Liability Convention in respect of the portion of his liability mentioned
above.
3.
The Fund may be exonerated wholly or partially from its obligations under
paragraph 1 towards the owner and his guarantor if the Fund proves that as a
result of the actual fault or privity of the owner:
(a) the ship from which the
oil causing the pollution damage escaped did not comply with the requirements
laid down in:
(i) the International
Convention for the Prevention of Pollution of the Sea by Oil, 1954, as amended
in 1962; or
(ii) the International
Convention for the Safety of Life at Sea, 1960; or
(iii) the International
Convention on Load Lines, 1966; or
(iv) the International
Regulations for Preventing Collisions at Sea, 1960; or
(v) any amendments to the
above-mentioned Conventions which have been determined as being of an important
nature in accordance with Article XVI (5) of the Convention mentioned under
(i), Article IX (e) of the Convention mentioned under (ii) or Article 29(3)(d)
or (4)(d) of the Convention mentioned under (iii), provided, however, that such
amendments had been in force for at least twelve months at the time of the
incident; and
(b) the incident or damage
was caused wholly or partially by such non-compliance.
The
provisions of this paragraph shall apply irrespective of whether the
Contracting State in which the ship was registered or whose flag it was flying
is a Party to the relevant Instrument.
4.
Upon the entry into force of a new Convention designed to replace, in whole or
in part, any of the Instruments specified in paragraph 3, the Assembly may
decide at least six months in advance a date on which the new Convention will
replace such Instrument or part thereof for the purpose of paragraph 3.
However, any State Party to this Convention may declare to the Director before
that date that it does not accept such replacement; in which case the decision
of the Assembly shall have no effect in respect of a ship registered in, or
flying the flag of, that State at the time of the incident. Such a declaration
may be withdrawn at any later date and shall in any event cease to have effect
when the State in question becomes a party to such new Convention.
5.
A ship complying with the requirements in an amendment to an Instrument
specified in paragraph 3 or with requirements in a new Convention, where the
amendment or Convention is designed to replace in whole or in part such
Instrument, shall be considered as complying with the requirements in the said
Instrument for the purposes of paragraph 3.
6.
Where the Fund, acting as a guarantor by virtue of paragraph 2, has paid
compensation for pollution damage in accordance with the Liability Convention,
it shall have a right of recovery from the owner if and to the extent that the
Fund would have been exonerated pursuant to paragraph 3 from its obligations
under paragraph 1 to indemnify the owner.
7.
Expenses reasonably incurred and sacrifices reasonably made by the owner
voluntarily to prevent or minimize pollution damage shall be treated as
included in the owner's liability for the purposes of this Article.
1.
Rights to compensation under Article 4 or indemnification under Article 5 shall
be extinguished unless an action is brought thereunder or a notification has
been made pursuant to Article 7, paragraph 6, within three years from the date
when the damage occurred. However, in no case shall an action be brought after
six years from the date of the incident which caused the damage.
2.
Notwithstanding paragraph 1, the right of the owner or his guarantor to seek
indemnification from the Fund pursuant to Article 5, paragraph 1, shall in no
case be extinguished before the expiry of a period of six months as from the
date on which the owner or his guarantor acquired knowledge of the bringing of
an action against him under the Liability Convention.
1.
Subject to the subsequent provisions of this Article, any action against the
Fund for compensation under Article 4 or indemnification under Article 5 of
this Convention shall be brought only before a court competent under Article IX
of the Liability Convention in respect of actions against the owner who is or
who would, but for the provisions of Article III, paragraph 2, of that
Convention, have been liable for pollution damage caused by the relevant
incident.
2.
Each Contracting State shall ensure that its courts possess the necessary
jurisdiction to entertain such actions against the Fund as are referred to in
paragraph 1.
3.
Where an action for compensation for pollution damage has been brought before a
court competent under Article IX of the Liability Convention against the owner
of a ship or his guarantor, such court shall have exclusive jurisdictional
competence over any action against the Fund for compensation or indemnification
under the provisions of Article 4 or 5 of this Convention in respect of the
same damage. However, where an action for compensation for pollution damage
under the Liability Convention has been brought before a court in a State Party
to the Liability Convention but not to this Convention, any action against the
Fund under Article 4 or under Article 5, paragraph 1, of this Convention shall
at the option of the claimant be brought either before a court of the State
where the Fund has its headquarters or before any court of a State Party to
this Convention competent under Article IX of the Liability Convention.
4.
Each Contracting State shall ensure that the Fund have the right to intervene
as a party to any legal proceedings instituted in accordance with Article IX of
the Liability Convention before a competent court of that State against the
owner of a ship or his guarantor.
5.
Except as otherwise provided in paragraph 6, the Fund shall not be bound by any
judgment or decision in proceedings to which it has not been a party or by any
settlement to which it is not a party.
6.
Without prejudice to the provisions of paragraph 4, where an action under the
Liability Convention for compensation for pollution damage has been brought
against an owner or his guarantor before a competent court in a Contracting
State, each party to the proceedings shall be entitled under the national law
of that State to notify the Fund of the proceedings. Where such notification
has been made in accordance with the formalities required by the law of the
court seized and in such time and in such a manner that the Fund has in fact
been in a position effectively to intervene as a party to the proceedings, any
judgment rendered by the court in such proceedings shall, after it has become
final and enforceable in the State where the judgment was given, become binding
upon the Fund in the sense that the facts and findings in that judgment may not
be disputed by the Fund even if the Fund has not actually intervened in the
proceedings.
Subject
to any decision concerning the distribution referred to in Article 4, paragraph
5, any judgment given against the Fund by a court having jurisdiction in
accordance with Article 7, paragraphs 1 and 3, shall, when it has become
enforceable in the State of origin and is in that State no longer subject to
ordinary forms of review, be recognized and enforceable in each Contracting
State on the same conditions as are prescribed in Article X of the Liability
Convention.
1.
Subject to the provisions of Article 5, the Fund shall, in respect of any
amount of compensation for pollution damage paid by the Fund in accordance with
Article 4, paragraph 1, of this Convention, acquire by subrogation the rights
that the person so compensated may enjoy under the Liability Convention against
the owner or his guarantor.
2.
Nothing in this Convention shall prejudice any right of recourse or subrogation
of the Fund against persons other than those referred to in the preceding
paragraph. In any event the right of the Fund to subrogation against such
person shall not be less favourable than that of an insurer of the person to
whom compensation or indemnification has been paid.
3.
Without prejudice to any other rights of subrogation or recourse against the
Fund which may exist, a Contracting State or agency thereof which has paid
compensation for pollution damage in accordance with provisions of national law
shall acquire by subrogation the rights which the person so compensated would have
enjoyed under this Convention.
1.
Contributions to the Fund shall be made in respect of each Contracting State by
any person who, in the calendar year referred to in Article 11, paragraph 1, as
regards initial contributions and in Article 12, paragraphs 2(a) or (b), as
regards annual contributions, has received in total quantities exceeding
150,000